Observation (CEACR) - adoptée 1992, publiée 79ème session CIT (1992)

1. The Committee notes that, commenting on the application of the Convention, the Netherlands Trade Union Federation (FNV) has stated that the various forms of flexible employment relationships (viz. homework, tele-work, freelance and stand-by work) which are undertaken mostly by women, are the primary source of pay inequality. Women who carry out these forms of employment are unable to invoke any or most of the legislation proscribing discrimination because of the type of contract under which they are employed. According to the FNV, the choice of contract is mainly, if not entirely, determined by the employer (even though the employee does not object or personally opts for various elements of flexible employment). The FNV calls upon the Government to adopt a more energetic policy, including taking legislative measures, to ensure that the majority of workers engaged in these forms of employment do not remain outside the scope of legal protection. The FNV considers that such action would facilitate the elimination of large-scale inequalities in remuneration.

The Committee notes that, in responding to the above comment, the Government has stated that the problem of so-called flexible labour relations is considered to be an important policy issue in the country. The Government also states that Convention No. 100 does not specifically oblige governments to take the action requested by the FNV.

The Committee notes from the Government's report that all categories of workers are covered by the equal pay provisions of the Equal Treatment for Men and Women Act, 1989, the only condition under section 1(b) of the Act being that the work be performed under the authority of an employer (an individual, a body corporate or other competent authority). The Committee requests the Government to provide information in its next report concerning the manner in which the legislation in force is interpreted by the relevant authorities and tribunals to apply to those workers about whom the FNV has expressed concern.

2. In its previous direct request, the Committee had noted that pursuant to the above-mentioned 1989 Act, the basis for comparing remuneration is restricted to the wage normally received by a worker of the other sex in the same undertaking for work of equal value or, failing that, for work of virtually equal value (section 7(1)), whereas section 3(2) of the 1975 equal pay legislation also allowed for the possibility, in cases where no work of equal or approximately equal value was done by a worker of the other sex in the undertaking where the worker concerned was employed, of extending the comparison to the wage normally received by a worker of the other sex in an undertaking of as nearly as possible the same kind in the same sector for work of equal value or, in the absence of such work, for work of approximately equal value. The Committee had requested the Government to indicate the means by which women workers who are heavily concentrated in certain sectors of activity, where the possibilities of comparison may be insufficient at the level of the enterprise, may seek to have their claims for equal pay determined. The Committee notes from the report of the Government that the possibility for extending the scope of comparison to another undertaking, as provided for under the 1975 Act, was never used in practice for the reason that it is very hard to prove that differences in wages between employees in different companies are based on sex discrimination, as this can easily be countered by stating that one company just pays better for work of the same value than another company. As the provision in question was never used, the Government did not include it in the new legislation.

The Committee recognises that the question of determining how broadly comparisons between the jobs performed by men and women should be permitted is a particularly difficult aspect of applying the Convention. Nevertheless, it is evident that adequate possibilities for comparison must be available if the principle of equal pay is to have any application in a sex-segregated labour market. As the Committee stated in its 1986 General Survey, it is essential, in order to ensure equal remuneration in an industry employing mostly women, that there be a basis of comparison outside the limits of the establishment or enterprise concerned. This is not to say that factors affecting wage levels which are outside the scope of the Convention (such as geographical location, surplus or scarcity of particular skills or the pay policies of individual enterprises) are to be excluded from consideration. It is true that differences in remuneration for women employed in different enterprises but engaged in work of equal value may be due to the fact that one company pays its workers at a higher rate. However, there may be a basis for inferring discrimination on the basis of sex if, in examining the total wage structure of the enterprises in question, it becomes apparent that in one company, there is a consistently wider differential between female and male employees than in another comparable enterprise. In this regard, the Committee recalls that the 1975 equal pay legislation also provided that where comparisons were made outside the undertaking (pursuant to section 3(2)), account was to be taken of "general differences in the wage structures of the undertakings concerned" (section 5(3)). While acknowledging the difficulties involved in broadening the scope of comparison, the Committee requests the Government to further consider how, in practice, women workers who find their possibilities for comparison insufficient at the level of the enterprise may seek to enforce their right to equal pay for work of equal value.